Here’s a question I asked myself yesterday: Would I rather have my phone records collected and readied for possible inspection by the National Security Agency, or have my genitalia scrutinized by the Transportation Security Administration?

One answer, of course, is, why choose? In today’s America you can have both. [Ed. Is this a great country or what?!?]

The 4th Amendment is an ancient memory, clearly an affectation among us hicks.

How many records did the NSA seize from Verizon? Hundreds of millions. We are now learning about more potential mass data collections by the government from other communications and online companies. These are the “details,” and few Americans consider this approach “balanced,” though many rightly consider it Orwellian.

These activities violate the Fourth Amendment, which says warrants must be specific—”particularly describing the place to be searched, and the persons or things to be seized.” And what is the government doing with these records? The president assures us that the government is simply monitoring the origin and length of phone calls, not eavesdropping on their contents. Is this administration seriously asking us to trust the same government that admittedly targets political dissidents through the Internal Revenue Service and journalists through the Justice Department?

The country is in the very best of hands. Ai yi yi yi yi!

No one objects to balancing security against liberty. No one objects to seeking warrants for targeted monitoring based on probable cause. We’ve always done this.

What is objectionable is a system in which government has unlimited and privileged access to the details of our private affairs, and citizens are simply supposed to trust that there won’t be any abuse of power. This is an absurd expectation. Americans should trust the National Security Agency as much as they do the IRS and Justice Department.

When British soldiers were roaming the American countryside in the 1760s with lawful search warrants with which they had authorized themselves to enter the private homes of colonists in order to search for government-issued stamps, Thomas Paine wrote, “These are the times that try men’s souls.” The soul-searching became a revolution in thinking about the relationship of government to individuals. That thinking led to casting off a king and writing a Constitution.

What offended the colonists when the soldiers came legally knocking was the violation of their natural right to privacy, their right to be left alone. We all have the need and right to be left alone. We all know that we function more fully as human beings when no authority figure monitors us or compels us to ask for a permission slip. This right comes from within us, not from the government.
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And, of course, to prevent the recurrence of soldier-written search warrants and the government dragnets and fishing expeditions they wrought, the Constitution mandates that only judges may issue search warrants, and they may do so only on the basis of probable cause of crime, and the warrants must “particularly describ(e) the place to be searched, and the persons or things to be seized.”

Last week, we discovered that the government has persuaded judges to issue search warrants not on the constitutionally mandated basis, but because it would be easier for the feds to catch terrorists if they had a record of our phone calls and our emails and texts. How did that happen?
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After 9/11, Congress enacted the Patriot Act. This permitted federal agents to write their own search warrants, as if to mimic the British soldiers in the 1760s. It was amended to permit the feds to go to the FISA court and get a search warrant for the electronic records of any American who might communicate with a foreign person.

In 30 years, from 1979 to 2009, the legal standard for searching and seizing private communications — the bar that the Constitution requires the government to meet — was lowered by Congress from probable cause of crime to probable cause of being an agent of a foreign power to probable cause of being a foreign person to probable cause of communicating with a foreign person. Congress made all these changes, notwithstanding the oath that each member of Congress took to uphold the Constitution. It is obvious that the present standard, probable cause of communicating with a foreign person, bears no rational or lawful resemblance to the constitutionally mandated standard: probable cause of crime.